Total Transportation v. Shores
| Docket Number: | 2005-WC-01951-COA Linked Case(s): 2005-WC-01951-COA2005-CT-01951-SCT2005-CT-01951-SCT2005-CT-01951-SCT |
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| Oral Argument: | 07-18-2006 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-21-2006 Opinion Author: LEE, P.J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Workers’ compensation - Course and scope of employment - Intoxication - Third party assault Judge(s) Concurring: MYERS, P.J., GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Dissenting Author : CHANDLER, J. Dissent Joined By : KING, C.J., SOUTHWICK AND IRVING, JJ. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - WORKERS' COMPENSATION |
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| Trial Court: |
Date of Trial Judgment: 09-19-2005 Appealed from: RANKIN COUNTY CIRCUIT COURT Judge: Samac Richardson Disposition: TRIAL COURT AFFIRMED COMMISSION’S DECISION TO AWARD DEATH BENEFITS TO WIFE OF DECEDENT. Case Number: 2005-99-R |
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| Party Name: | Attorney Name: | |||
| Appellant: | TOTAL TRANSPORTATION, INC. OF MISSISSIPPI
AND PROTECTIVE INSURANCE COMPANY |
JEREMY LLOYD CARLSON, EVE GABLE, JEFFREY A. WALKER |
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| Appellee: | GERRY LYNN SHORES, WIDOW AND DEPENDENT OF PHILLIP SHORES, DECEASED | TINA LORRAINE NICHOLSON |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Workers’ compensation - Course and scope of employment - Intoxication - Third party assault |
| Summary of the Facts: | Phillip Shores and his wife, Lynn, were employed by Total Transportation, Inc., of Mississippi as an over-the-road trucking team. Mrs. Shores filed suit against Total and its insurance carrier, seeking workers’ compensation benefits for the death of her husband after he was shot and killed. The Administrative Law Judge entered an order awarding death benefits to Mrs. Shores. Total appealed the ALJ’s ruling to the Commission which affirmed. The circuit court also affirmed, and Total appeals. |
| Summary of Opinion Analysis: | Issue 1: Course and scope of employment Total argues that the Commission erred in holding that Mr. Shores was acting in the course and scope of his employment when he was killed. One is injured in the course of employment when an injury results from activity actuated partly by a duty to serve the employer or reasonably incident to the employment. If the employee is considered a traveling employee, the employee remains in the course of his employment from the time he leaves home until he returns unless the employee deviates from his employment. If the traveling employee is on a personal mission or errand of his own then he will not be compensated for his injuries. Furthermore, in order to find a death or injury noncompensable on the ground that an employee deviated from his duties, the testimony must be sufficient to constitute an abandonment. Unsanctioned recreational activities wholly unrelated to employment duties do not arise out of and in the course of employment. In this case, the Shores began having trouble with their truck and located a Petro station to have the truck repaired. Prior to reaching the Petro station, Mrs. Shores dropped Mr. Shores off at a Sinclair Fuel Center because he wanted to get away from the truck and get something to eat. Mrs. Shores drove the truck back to the Petro station for the needed repairs. When she returned to the Sinclair Fuel Station, she could not find her husband. Mr. Shores entered a bar located at the Fuel Station around 3:00 p.m. and stayed until 2:00 a.m. According to several witnesses, he appeared intoxicated while at the bar. Electronic records showed that he withdrew almost all of his weekly paycheck of over $400 from an ATM. Shores asked another patron of the bar for a ride to the Petro station when the bar closed. Shores became nervous when they passed the Petro station and attempted to jump from the moving vehicle. The other man shot him in the back as he exited the vehicle. The Commission erred in only considering Mr. Shores’ intoxication within the context of section 71-3-7(d), which states that no compensation shall be payable if the intoxication of the employee was the proximate cause of the injury. Total did not use Mr. Shores’ intoxication as an affirmative defense, but instead argued that Shores’ intoxication bolstered the showing of deviation from the course of employment. The Commission also erred in finding that Mr. Shores’ noncompliance with company policy regarding drinking alcohol while on the job did not preclude him from reentering his employment. The fact that Mr. Shores remained at the bar for eleven hours, his drinking, his state of mind prior to leaving the truck and even prior employment history clearly indicate that Mr. Shores was not acting reasonably incident to employment. Issue 2: Third party assault If an employee’s injury or death has been caused by a third party intentional tort, it must be shown that such willful act was directed against the employee because of his employment while so employed and working on the job. The employment must be a contributing cause of the willful act of the third party, not merely a contributing cause of the employee being present at the place where the assault occurred. Shores did not become involved in an altercation with the other man over Shores’ trucking services or anything related to trucking. While Shores’ employment with Total was a contributing cause of his being in the other man’s car when he was shot, his employment as a truck driver was not in any way a contributing cause of the man’s decision to rob and then fatally shoot him. The fact that his job as a trucker caused him to be in the other man’s car is insufficient to establish a nexus between employment and injury. The administrative law judge invoked the “positional risk doctrine” and held that Shores was killed because of his employment based on the fact that the risk of assault was a street risk which was incidental to his employment as a traveling employee far away from home. However, the positional risk doctrine will not be applied to truck drivers based on unfair stereotypes of them and generalizations about the environment in which they work. |
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